Citation Nr: 9928100
Decision Date: 09/29/99 Archive Date: 10/12/99
DOCKET NO. 98-01 302 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for chronic bilateral
knee disability.
3. Entitlement to service connection for a chronic low back
disability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Artur F. Korniluk, Associate Counsel
INTRODUCTION
The veteran had active military service from April 1966 to
March 1968.
This matter comes to the Board of Veterans' Appeals (Board)
from the Department of Veterans Affairs (VA) New Orleans
Regional Office (RO) September 1997 rating decision which
denied service connection for hypertension, low back and
bilateral knee disabilities.
At his July 1999 Travel Board hearing, the veteran submitted
evidence which was not previously of record, consisting of
copies of private medical records from July 1995 to July
1999. Initial consideration of this additional evidence by
the RO was waived, in writing, by the veteran pursuant to
38 C.F.R. § 20.1304(c) (1998), and the Board may therefore
consider it in the first instance. Although more evidence
was submitted in September 1999 (including records from Drs.
S. Kothapalli, M. Mounir, P. Hubbell, and the Social Security
Administration (SSA)), unaccompanied by a § 1304(c) waiver,
the Board finds that it is not pertinent to the veteran's
claim of service connection for hypertension as it merely
includes a diagnosis thereof. The current existence of
hypertension is not a fact in dispute in this matter as it
has already been established by other evidence. Accordingly,
the Board finds no basis to return the matter of service
connection for hypertension to the RO for initial
consideration of the recently submitted evidence. Insofar as
the recently submitted evidence pertains to the claims of
service connection for low back and bilateral knee
disabilities, the RO should review such evidence in the first
instance (as other considerations, discussed below, warrant a
remand of such claims).
FINDINGS OF FACT
1. Hypertension was not evident in active service or for
many years thereafter, and competent medical evidence does
not show that the currently diagnosed hypertension is linked
to service or any incident occurring therein.
2. It is plausible that the veteran's current bilateral knee
disabilities may be linked to his period of active service.
3. It is plausible that his current low back disability may
be linked to his period of active service.
CONCLUSIONS OF LAW
1. The veteran has not presented a well-grounded claim of
service connection for hypertension. 38 U.S.C.A. § 5107(a)
(West 1991).
2. The claim of service connection for chronic bilateral
knee disabilities is well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
3. The claim of service connection for a chronic low back
disability is well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection may be allowed for a chronic disability,
resulting from an injury or disease, which is incurred in or
aggravated by the veteran's period of active wartime service.
38 U.S.C.A. § 1110 (West 1991).
Service connection may also be allowed on a presumptive basis
for arthritis and certain cardiovascular-renal diseases
including hypertension, if the pertinent disability becomes
manifest to a compensable degree within one year after the
veteran's separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (1998).
Congenital or developmental defects are not considered
diseases or injuries within the meaning of applicable
legislation for disability compensation purposes. 38 C.F.R.
§§ 3.303(c), 4.9 (1998).
For a showing of chronic disease in service there is required
a combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic."
Continuity of symptomatology is required when the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, a showing of continuity after discharge
is required to support the claim. 38 C.F.R. § 3.303(b)
(1998).
The U.S. Court of Appeals for Veterans Claims (the Court) has
held that lay observations of symptomatology are pertinent to
the development of a claim of service connection, if
corroborated by medical evidence. See Rhodes v. Brown,
4 Vet. App. 124, 126-127 (1993). The Court established the
following rules with regard to claims addressing the issue of
chronicity. Chronicity under the provisions of 38 C.F.R. §
3.303(b) is applicable where evidence, regardless of its
date, shows that a veteran had a chronic condition in service
and still has such condition. Such evidence must be medical
unless it relates to a condition as to which, under the
Court's case law, lay observation is competent. If the
chronicity provision is not applicable, a claim may still be
well grounded if (1) the condition is observed during
service, (2) continuity of symptomatology is demonstrated
thereafter and (3) competent evidence relates the present
condition to that symptomatology. Savage v. Gober, 10 Vet.
App. 488, 495 (1997). A lay person is competent to testify
only as to observable symptoms. A lay person is not,
however, competent to provide evidence that the observable
symptoms are manifestations of chronic pathology or diagnosed
disability. Falzone v. Brown, 8 Vet. App. 398, 403 (1995).
A determination of service connection requires a finding of
the existence of a current disability and a determination of
a relationship between the disability and an injury or
disease incurred in service. Watson v. Brown, 4 Vet.
App. 309, 314 (1994). However, service connection may be
granted for a post-service initial diagnosis of a disease
that is established as having been incurred in or aggravated
by service. 38 C.F.R. § 3.303(d) (1998).
The threshold question is whether the veteran has presented
evidence that his claim is well grounded. See 38 U.S.C.A.
§ 5107(a). A well-grounded claim is a plausible claim.
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A mere
allegation that a disability is service connected is not
sufficient; the veteran must submit evidence in support of
his claim which would justify a belief by a fair and
impartial individual that the claim is plausible. In order
for a claim to be well grounded, there must be competent
evidence of current disability (a medical diagnosis), of
incurrence or aggravation of a disease or injury in service
(lay or medical evidence), and of a nexus between the in-
service injury or disease and a current disability (medical
evidence). See Caluza v. Brown, 7 Vet. App. 498 (1995).
Where the determinative issue involves a question of medical
diagnosis or causation, competent medical evidence to the
effect that the claim is plausible or possible is required to
establish a well-grounded claim. Libertine v. Brown, 9 Vet.
App. 521 (1996); Grottveit v. Brown, 5 Vet. App. 91, 93
(1993). A lay person is not competent to make a medical
diagnosis or to relate a medical disorder to a specific
cause. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994),
citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
Therefore, lay statements regarding a medical diagnosis or
causation do not constitute evidence sufficient to establish
a well-grounded claim under 38 U.S.C.A. § 5107(a). See
Grottveit, 5 Vet. App. at 93.
The veteran's service medical records do not reveal any
report or clinical finding indicating the presence of
hypertension; on pre-induction medical examination in August
1965, his blood pressure was 138/76; on examination, he
reported a history of left knee contusion, but no pertinent
clinical finding was evident on examination. In December
1966, he indicated that he experienced pain and cracking
sensation involving both knees. In February 1968, he
reported experiencing low back pain "from work." On
service separation medical examination in March 1968, he
reported a history of pain or pressure in chest, but on
examination, his blood pressure was 130/80; he also reported
experiencing occasional instability involving the left knee,
but no pertinent clinical findings were noted on examination.
In February 1997, M. Berard, Ph.D., indicated that the
veteran underwent bilateral knee replacement surgery in
September 1996 and continued to experience symptoms of
bilateral knee and low back pain.
In June 1997, M. Mehta, M.D., indicated that the veteran had
a history of hypertension, hypercholesteremia, and low back
and knee pain since October 1993. A clinical study in
October 1993 reportedly revealed the presence of
osteoarthritis involving the right knee; a magnetic resonance
imaging (MRI) study of the lumbosacral spine in December 1993
reportedly revealed the presence of pseudo-herniation of the
posterior disc margin at L4-5.
On VA medical examination in August 1997, it was indicated
that the veteran did not have a history of angina or heart
attack; since 1985, he reportedly knew that he had
hypertension. He indicated that he experienced bilateral
knee pain since high school, noting that the pain increased
in severity during active service; reportedly, he underwent
right and left total knee replacement in September 1996 but
continued to experience problems with the knees. Reportedly,
he sustained a low back injury in a dredging accident in 1977
and continued to experience low back pain since that time; he
indicated that an X-ray study of the low back in 1977
revealed the presence of a birth-defect. On examination,
hypertension, status post bilateral total knee replacement,
and status post lumbar trauma with lumbar arthralgia were
diagnosed.
On VA orthopedic examination in August 1997, the veteran
indicated that he experienced bilateral knee and low back
pain (noting that he underwent total knee replacement in 1996
and that he had a history of bulging disc at L5). X-ray
study of the lumbar spine revealed degenerative changes from
L3 to S1 with mild narrowing of the inter-disc space at L4 to
L5 and L5 to S1, and first degree anterior spondylolisthesis
of L5 over S1 spondylolysis of L5 pars articularis; a study
of the knees revealed post surgical changes (status post
total knee replacement).
In July 1999, Dr. Berard suggested that the veteran had a
"lifelong history of lumbar and knee complications which
have required bilateral knee joint replacements." He opined
that the veteran's "orthopedic condition" preexisted his
Vietnam service but his service in Vietnam was identified as
a major contributor to the deterioration of his orthopedic
condition.
Medical records from J. Schutte, M.D., from July 1995 to July
1999 reveal intermittent treatment associated with low back
and bilateral knee pain, and include reports of history of
hypertension. On examination in July 1995, the veteran
indicated that he had a long history of low back and knee
pain, noting that he hurt his low back many years ago and
experienced pain since that time. Reportedly, he experienced
problems with his knees prior to December 1992 (at which time
he appears to have sustained knee injury in a motor vehicle
accident) requiring medical treatment; on examination,
chronic disabilities involving the low back and both knees
were diagnosed; Dr. Schutte indicated that the veteran had
significant spondylolisthesis at L5-S1 and bilateral varus
deformities of both knees for many years. In September 1996,
he had bilateral total knee replacement surgery. A July 1999
MRI study of the lumbar spine revealed disc herniation at L5-
S1, disc bulge/protrusion at L4-5 and L3-4, and grade I
spondylolisthesis at L5.
At a July 1999 Travel Board hearing, the veteran testified
that he had hypertension since active service (now requiring
medication), believing that it had its onset as a result of
exposure to combat-related tension in Vietnam. He indicated
that he initially sought treatment for hypertension in
October 1993. He believed that he had a low back defect
since birth, but noted that he did not experience any
symptomatology prior to service, and suggested that his low
back disability was aggravated by service; reportedly, he was
involved in a dredging accident in 1976 or 1977 requiring
medical treatment. He indicated that he experienced
bilateral knee problems since combat-service in Vietnam. He
suggested that he sustained right knee bruising in a motor
vehicle accident in December 1992 (not requiring
hospitalization or extensive treatment), that he underwent
bilateral total knee replacement in 1996, and that he was in
receipt of SSA disability benefits due to his low back and
knee disabilities. He identified various healthcare
providers who reportedly treated him for his knee and low
back disabilities over the years.
Not well grounded claim
Based on the entire evidence of record, as discussed above,
the Board finds that the claim of service connection for
hypertension is not well grounded. Initially, the Board
notes that although the veteran is competent to state that he
sustained personally observable injury in service and to
describe personally observable symptoms following such
injury, he is not competent, as a lay person, to make a
medical diagnosis of chronic disability or to relate a
medical disorder to a specific cause. See Grivois, 6 Vet.
App. at 140, citing Espiritu, 2 Vet. App. at 494. Thus, he
is not competent to provide a medical diagnosis of
hypertension or to conclude, in clinical terms, that the
currently diagnosed hypertension is related to active service
or any incident occurring therein. To establish service
connection for a chronic disability, competent medical
evidence providing a nexus between the current disability and
service is required. See Caluza, 7 Vet. App. 498.
Although there is a current medical diagnosis of hypertension
(see VA medical examination report in August 1997) and the
disease appears to have been initially diagnosed in 1993 (see
Dr. Mehta's June 1997 records), hypertension was not
clinically evident in service or for many years thereafter;
on service separation medical examination in March 1968, his
blood pressure was 130/80.
The Board is mindful of the veteran's contentions that there
is a causal link between his current hypertension and
tension-laden combat service in Vietnam. However, the only
evidence of record specifically linking hypertension to
service consists of his own contentions. Such evidence is
insufficient to well ground the claim because, as discussed
above, he is not shown to be competent to offer evidence
requiring medical experience and specialized medical
knowledge and skill. Grottveit, 5 Vet. App. at 93.
Generally, in order for a claim to be well grounded, medical
evidence of nexus between a current disability and service is
required. In Libertine, 9 Vet. App. 521, it was held that
certain disabilities are susceptible to observation by lay
persons, thus warranting the grant of service connection
based on lay statements alone, but in other instances,
medical evidence of nexus to service is still required. Id.
at 524. In this case, the Board finds that while the veteran
is capable of describing tension to which he was exposed in
service, he is not competent to establish the required nexus
between service and the onset of hypertension many years
thereafter.
Assuming, without deciding, that 38 U.S.C.A. § 1154(b)
applies to this claim, the claim of service connection for
hypertension nevertheless remains not well grounded because,
as discussed above, the veteran is not competent to provide a
medical diagnosis of hypertension or to relate its onset
(many years after service) to any specific cause.
Although the veteran's claim has been considered and denied
by the Board on a ground different from that of the RO, which
denied the claim on the merits, the veteran has not been
prejudiced by the decision. This is because in assuming that
the claim was well grounded, the RO accorded the veteran
greater consideration than his claim in fact warranted under
the circumstances. Bernard v. Brown, 4 Vet. App. 384, 394
(1993).
If a claim is not well grounded, the Board does not have
jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet.
App. 14 (1993). A not well-grounded claim must be denied.
Edenfield v. Brown, 8 Vet. App. 384 (1995). If the initial
burden of presenting evidence of a well-grounded claim is not
met, VA does not have a duty to assist the veteran in the
development of the claim. 38 U.S.C.A. § 5107(a); Murphy, 1
Vet. App. at 81-82.
The Board finds that the RO has advised the veteran of the
evidence necessary to establish a well-grounded claim, and
the veteran has not indicated the existence or availability
of any medical evidence that has not already been obtained
that would well ground his claim. Epps v. Brown, 9 Vet.
App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d
1464 (Fed. Cir. 1997).
Well grounded claims
Based on the entire evidence of record, as discussed above,
the Board finds that the claims of service connection for
chronic low back and bilateral knee disabilities are well
grounded in that they are plausible and capable of
substantiation. 38 U.S.C.A. § 5107(a). This finding is
based on the veteran's assertion that he sustained trauma to
the low back and both knees during service, resulting in
recurrent pain and discomfort which he has experienced since
that time. The Board notes that although he is not competent
to provide a medical diagnosis of a chronic disability or to
relate the current low back and/or knee disabilities to a
specific cause, he is competent to state that he sustained
injury in service and that he has experienced personally
observable symptomatology since that time (his credibility in
that regard is presumed). See Cartright v. Derwinski, 2 Vet.
App. 24 (1991). His contention regarding in-service
manifestation of low back and bilateral knee symptomatology
is corroborated by his service medical records, as discussed
above.
Although the available evidence of record indicates that the
veteran sustained bilateral knee and low back injuries after
service, and that his current chronic disabilities may be
related to such post service injuries, the evidence also
suggests that low back and/or bilateral knee disabilities may
have existed prior to his post service injuries (see July
1999 report from Dr. Berard and medical records from Dr.
Schutte). Thus, his claims of service connection for chronic
low back and right lower extremity disabilities are capable
of substantiation.
ORDER
Service connection for hypertension is denied.
The claims of service connection for chronic low back and
bilateral knee disability are well grounded.
REMAND
If a claim is well grounded, VA has a duty to assist the
veteran in the development of facts pertinent to his claim,
see 38 U.S.C.A. § 5107(b), which duty includes a thorough VA
examination. Hyder v. Derwinski, 1 Vet. App. 221 (1991).
Although he was afforded VA medical and orthopedic
examination in August 1997, at which time chronic low back
and bilateral knee disabilities were diagnosed, the examiners
did not provide an opinion regarding the etiology of such
disabilities. Thus, the Board is of the opinion that another
VA orthopedic examination should be performed, in conjunction
with the examiner's review of the claims file, to determine
the origins of the current low back and bilateral knee
disabilities. Suttmann v. Brown, 5 Vet. App. 127, 137
(1993).
Moreover, at his July 1999 Travel Board hearing, the veteran
identified various medical care providers who treated him for
the claimed low back and knee disabilities since service,
including the Gary Memorial Hospital in Breaux Bridge, Dr.
LaBlanc, and Drs. Blanda and Cobb in Lafayette, and Dr.
Watermarr in New Orleans. Thus, all available outstanding
treatment records should be secured and associated with the
veteran's claims folder. Bell v. Derwinski, 2 Vet. App. 611
(1992) (when VA is on notice of the existence and relevance
of evidence, it must obtain same prior to issuing a
decision).
Finally, the evidence of record indicates that the veteran is
in receipt of SSA disability benefits due to, in pertinent
part, his low back and bilateral knee disabilities (as
evidenced by SSA disability determination notice dated in
June 1997, submitted to the Board in September 1999).
Although a decision of the SSA is not controlling for
purposes of VA adjudications, it is pertinent to a complete
and equitable adjudication of the veteran's claim. Thus,
medical records forming the basis for the award of SSA
benefits must be added to the claims file prior to resolution
of this claim. Murincsak v. Derwinski, 2 Vet. App. 363
(1992).
Accordingly, the case is REMANDED for the following action:
1. The RO should obtain from the
veteran the names, addresses, and dates
of treatment of medical care providers
who treated him for low back and knee
disabilities since service. After any
necessary authorization is obtained from
him, any such pertinent records of
treatment (not already of record) should
be obtained by the RO and added to the
claims folder, particularly records from
the Gary Memorial Hospital in Breaux
Bridge, Dr. LaBlanc, and Drs. Blanda and
Cobb in Lafayette, and from Dr.
Watermarr in New Orleans.
2. The RO should contact the SSA and
secure for the claims folder copies of
records pertinent to the veteran's claim
for SSA benefits, as well as the medical
records relied on concerning that claim.
38 U.S.C.A. § 5106 (West 1991).
3. Then, the veteran should be afforded
another VA orthopedic examination to
determine the etiology of all low back
and bilateral knee disabilities now
present. The claims folder must be made
available to the examiner for review in
conjunction with this request for
medical opinion, and any report must
reflect the examiner's review of
pertinent evidence in the claims folder.
The examiner should be asked to provide
an opinion as to whether it is as likely
as not that any low back and/or
bilateral knee disability found is
causally related to service (to the
extent possible, the examiner should be
asked to comment on whether in-service
low back or knee pathology may be
distinguished from post-service
pathology, and if so, the examiner
should be requested to explain such
distinction). If it is determined that
any low back and/or knee disability
preexisted the veteran's active service
period, the examiner should provide an
opinion whether any such disability
underwent permanent increase in
disability during service (aggravation)
and, if so, whether such permanent
increase in disability during service
was beyond the natural progress of the
disease. If any of the foregoing cannot
be determined, the examiner should so
state for the record.
4. The RO should carefully review the
examination report and the other
development requested above to ensure
compliance with this remand. If any
development requested above has not been
furnished, including any requested
findings and/or opinions, remedial
action should be undertaken. See
Stegall v. West, 11 Vet. App. 268
(1998).
If the benefits sought on appeal are not granted, the veteran
and his representative should be provided a supplemental
statement of the case and afforded an opportunity to respond.
The case should then be returned to the Board for further
appellate review.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
J. F. Gough
Member, Board of Veterans' Appeals